Hertel did not deny the game was played but defense lawyer Gerard Hanlon had insisted there was no sexual purpose or intent behind a game he characterized as horseplay. Prosecutors argued that the game was sexual because it focused on the child’s genitals and Hertel had directed the youth not to tell his mother, according to the Daily Record.

His conviction was overturned last July because of confusing jury instructions.

Two female jurors had written the trial judge after the verdict, aghast at learning that Hertel faced a prison sentence and contending that they felt pressured by a male juror to convict on child endangerment. One juror had said she believed Hertel should be taught a lesson not to engage in inappropriate behavior with youths but didn’t think he should go to prison, the Record reports.

The Daily Record of Parsippany reports assistant prosecutor LaJuan Tucker told the judge on Tuesday that the boy is now a man and doesn't want to testify in a new trial.